A putative class action alleging that Dole Food Co. misleads consumers by claiming it is an environmentally friendly and socially responsible company despite purportedly purchasing bananas from growers using pesticides in Guatemala has reportedly been filed in a California federal court. According to a Hagens Berman news release, the suit, filed on November 13, 2012, alleges that Dole’s supplier destroyed wetlands and poisoned water sources. Steve Berman said, “Dole promised its customers it had an ‘unwavering commitment’ to environmental responsibility. Yet, it gave its business to a plantation that showed a complete disregard for the local environment.” See Hagens Berman Press Release, November 13, 2012.
Category Archives 9th Circuit
The owners of the California-based Hallmark Meat Packing Co. have reportedly settled claims that they committed fraud under the False Claims Act (FCA) by supplying ground beef to school lunch programs without meeting contractual commitments to treat their animals humanely. The Humane Soc’y of the U.S. v. Hallmark Meat Packing Co., No. 08-00221 (C.D. Cal., partial settlement announced November 16, 2012). The Humane Society of the United States (HSUS) brought the suit after it discovered and videotaped animal abuse at the meatpacking facility. Videotape of employees abusing non-ambulatory animals at the slaughterhouse resulted in the recall of 143 million pounds of beef in February 2008. The U.S. Department of Justice (DOJ) intervened in the litigation, which also involves the Westland Meat Company and other individual defendants. According to HSUS, Donald Hallmark Sr. and Donald Hallmark Jr. have agreed to pay $304,000 from their personal assets and will make structured payments…
A federal court in California has certified a nationwide class and Washington subclass of individuals who received purportedly unsolicited text messages sent by OnTime4U to advertise Papa John’s pizza products. Agne v. Papa John’s Int’l, Inc., No. 10-1139 (W.D. Wash., decided November 9, 2012). An appeal was filed before the Ninth Circuit on November 26. According to the court, “OnTime4U apparently told Papa John’s franchisees that it was legal to send texts without express customer consent because there was an existing business relationship between the customers and the Papa John’s restaurants. Certain Papa John’s franchisees, including at least some of the Rain City Defendants, provided OnTime4U with lists of telephone numbers of individuals who had purchased pizza from them. Those lists were generated out of the PROFIT system, a proprietary database that Papa John’s describes as a ‘point of sale data entry system.’ . . . OnTime4U removed landline numbers from…
A federal court has agreed to certify a class of California consumers allegedly misled by representations that AriZona Iced Tea® is “Natural” because it contains the processed, man-made ingredients high-fructose corn syrup (HFCS) and citric acid. Ries v. Arizona Beverages USA LLC, No. 10-01139 (N.D. Cal., order entered November 27, 2012). But the court granted the certification motion “for the purpose of injunctive and declaratory relief only” thus foreclosing the recovery of “monetary damages, including restitution, refund, reimbursement and disgorgement.” The named plaintiffs had sought certification under Federal Rule of Civil Procedure 23(b)(2), which “does not authorize class certification when each class member would be entitled to an individualized award of monetary damages.” According to the court, the claim for monetary relief predominates the complaint, and the plaintiffs “seek individualized awards of monetary restitution which would require individualized assessments of damages based on how many products the class member had…
A federal court in California recently granted in part and denied in part the Hershey Co.’s motion to dismiss putative class claims alleging that the chocolate maker violates consumer fraud laws by making unlawful nutrient content, “healthy” and antioxidant claims on product labels; failing to comply with chocolate product standards of identity or to use common names for ingredients; making unlawful sugar-free claims; and using improper serving sizes. Khasin v. The Hershey Co., No. 12-01862 (N.D. Cal., order entered November 9, 2012). Because the plaintiff’s claims were based on parallel state laws that “mirror” relevant sections of the Food, Drug, and Cosmetic Act (FDCA) and the Nutrition Labeling and Education Act, the court determined that they were not preempted. In this regard, the court noted, “complying with the demand requested by Plaintiff in this cause of action would not require that Defendant undertake food labeling or representation different from the…
A federal court in Hawaii has dismissed in part a complaint filed by the Equal Employment Opportunity Commission (EEOC) against farmers and a recruiting company that allegedly mistreated Thai workers. EEOC v. Global Horizons, Inc., No. 11-00257 (D. Hawaii, decided November 8, 2012). The court granted the motion to dismiss “insofar as the Court holds that a 300-day limitations period applies to claims brought by Plaintiff under 42 U.S.C. § 2000e-6” relating to allegations of pattern or practice of discriminatory treatment because of national origin, race, retaliation, and/or constructive discharge. The remainder of the claims, to the extent they did not involve unlawful employment practices allegedly occurring more than 300 days before a charge was filed with EEOC, are not time-barred and will proceed. EEOC alleges that defendant Global Horizon promised Thai men temporary visas to work high-paying agricultural jobs in the United States, but took their passports, provided substandard housing…
A federal court in California has dismissed putative class claims filed against H.J. Heinz Co. LP by a factory worker alleging that the company denied employees full wages by improperly rounding their time records while also purportedly penalizing and disciplining workers for “clocking in past scheduled start times or clocking out before scheduled end times.” Mendez v. H.J. Heinz Co., L.P., No. 12-5652 (C.D. Cal., decided November 13, 2012). The plaintiff sought to represent putative statewide and nationwide Fair Labor Standards Act (FLSA) classes and alleged violations of the California Labor Code—failure to pay all wages, failure to pay minimum wages owed, failure to timely pay wages at separation, failure to provide accurate wage statements—and violation of the California Business and Professions Code. He also asserted a claim for violation of the FLSA on behalf of the nationwide class. The court agreed with the defendants that the plaintiff failed to…
The Center for Science in the Public Interest (CSPI) has filed a putative nationwide class action in a federal court in California against Dr. Pepper Snapple Group, Inc., alleging that the company misleads consumers, through marketing and product labeling, to believe that the antioxidants contained in its beverages are derived from fruits and that the company’s use of antioxidants in soft drinks violates contrary Food and Drug Administration (FDA) regulations. Green v. Dr. Pepper Snapple Group, Inc., No. ___ (C.D. Cal., filed November 8, 2012). By using the term “antioxidant” in the names of some of its beverages, the company allegedly distinguishes its products “from similar soft drinks and, thereby, command[s] a premium price for the Products.” According to the complaint, “Contrary to Defendant’s claims and representations, the Products do not contain any real cherries, real berries, or even extracts from those fruits. Nor do the Products derive their antioxidant…
A California appeals court has determined that the Office of Environmental Health Hazard Assessment (OEHHA) may not add styrene or vinyl acetate to the Proposition 65 (Prop. 65) list of chemicals known to the state to cause cancer because they have been identified as “possible” but not known carcinogens. Styrene Info. & Research Ctr. v. OEHHA, No. C064301 (Cal. Ct. App., 3d Dist., decided October 31, 2012). Styrene is used in food packaging. The International Agency for Research on Cancer (IARC) had categorized the substances as Group 2b chemicals, which are “possibly” carcinogenic to humans, based on less than sufficient evidence of carcinogenicity in experimental animals. The court acknowledged that the California Health and Safety Code requires that the Prop. 65 list contain “at a minimum, the substances identified by reference in Labor Code section 6382, subdivision (d),” which addresses “hazardous substances” that extend “beyond those that cause cancer or…
A federal court in California has approved the settlement of class claims that will require Burger King Corp. to remove barriers to wheelchair and scooter access at more than 75 of the restaurants it leases to franchisees in the state and pay $19 million to the settlement class. Vallabhapuapu v. Burger King Corp., No. 11-00667 (N.D. Cal., decided October 29, 2012). This is the second settlement of Americans with Disabilities Act claims against the company; the first involved 10 certified classes and 10 alleged noncompliant restaurants in California. Each individual who files a claim by November 15, 2012, will take a pro rata share of the settlement for up to six visits to a Burger King restaurant “where he or she encountered a barrier to access.” As of mid-October, 620 claims had been filed with an average recovery expected to be nearly $5,000 per store visit, based on an adjusted…
